The Supreme Court handed President Donald Trump a controversial win this week with a "shadow docket" ruling that allows him, at least for the time being, to terminate key officials at the National Labor Relations Board and Merit Systems Protection Board. But in their decision, they hinted at a "line in the sand" they are afraid Trump might cross in his crusade to bring the federal government to heel, that they need to lay down before it becomes a risk, court analyst Ian Millhiser wrote for Vox.
The ruling has disturbed legal experts, who have warned that the practical effect is to undermine Humphrey's Executor v. United States, the 90-year-old landmark legal case that established Congress can protect certain independent agency heads from being fired without cause.
But the court emphasized their ruling does not purport to overturn that ruling, and their example of an agency they would not allow the president to interfere with speaks volumes, Millhiser wrote.
EXCLUSIVE: Trump accused of new grift that puts Qatari plane in shade
"While the Republican justices have signaled for quite some time that they are eager to give the president broad authority to fire officials that Congress intended to insulate from presidential control, the order includes a paragraph signaling that they will not allow Trump to fire members of the Federal Reserve," he continued.
That will have some significant implications, Millhiser said.
"From a legal perspective, the paragraph is difficult to parse. And, as Justice Elena Kagan writes in a dissenting opinion, is not supported by the legal authority it cites. But it is likely to reassure investors that, while the Supreme Court does appear eager to expand Trump’s authority over previously independent parts of the federal government, it won’t permit him to disrupt the Fed’s ability to make technocratic decisions about interest rates."
It is worth noting, he continued, that the court's reasoning for giving the Fed special treatment that no other independent agency is guaranteed to receive — “The Federal Reserve is a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States" — is nothing more than legal "gobbledygook."
In practical terms though, he concluded, it shows the court does have its limits and is scared of what would happen if Trump violated them, even if they do rule against Humphrey's Executor outright in an upcoming ruling.
"Of course, this is not how the law is supposed to work — judges are not supposed to start with the outcome that they want and then invite members of the bar to explain how to get there," he wrote. "But this also will hardly be the first time that the Roberts Court started with its intended outcome and reasoned backward to get there. It’s just being more transparent this time around."
